Judges at Guantanamo throw out 2 cases

GUANTANAMO BAY NAVAL BASE, Cuba - Military judges dismissed charges Monday
against a Guantanamo detainee accused of chauffeuring Osama bin Laden and
another who allegedly killed a US soldier in Afghanistan, throwing up roadblocks
to the Bush administration's attempt to try terror suspects in military courts.

A soldier walks through a gate at Camp Delta at Guantanamo
Naval Base in 2004. [Agencies]

In back-to-back arraignments for
Salim Ahmed Hamdan of Yemen and Canadian Omar Khadr the US military's cases
against the alleged al-Qaida figures dissolved because, the two judges said, the
government had failed to establish jurisdiction.

They were the only two of the roughly 380 prisoners at Guantanamo charged
with crimes, and the rulings stand to complicate efforts by the United States to
try other suspected al-Qaida and Taliban figures in military courts.

Hamdan's military judge, Navy Capt. Keith Allred, said the detainee is "not
subject to this commission" under legislation passed by Congress and signed by
President Bush last year. Hamdan is accused of chauffeuring bin Laden's and
being the al-Qaida chief's bodyguard.

The new Military Commissions Act was written to establish military trials
after the US Supreme Court last year - ruling in a case brought by Hamdan -
rejected the previous system. Defense attorneys argued the new system is full of
problems.

The judges agreed that there was one problem they could not resolve - the new
legislation says only "unlawful enemy combatants" can be tried by the military
trials, known as commissions. But Khadr and Hamdan had previously been
identified by military panels only as enemy combatants, lacking the critical
"unlawful" designation.

The surprise decisions do not spell freedom for the detainees, who are
imprisoned here along with the others suspected of links to al-Qaida and the
Taliban.

"He hopes he gets a fair trial and, like the rest of us, is patiently waiting
for it," Swift said.

Khadr was 15 when he was captured after a firefight in Afghanistan in 2002 in
which he allegedly killed a US soldier and was wounded himself. He is now 20.

Khadr, appearing in the courtroom with a beard and wearing an olive-green
prison uniform, seemed uninterested when his judge, Army Col. Peter Brownback,
threw out the case. Khadr focused on his own image on a computer screen that
showed a live TV broadcast of the proceedings.

The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight
Sullivan, said the dismissal of the case against Khadr could spell the end of
the war-crimes trial system hurriedly set up last year by Congress and Bush
after the Supreme Court threw out the previous system.

But Army Maj. Beth Kubala, spokeswoman for the Office of Military Commissions
that organizes the trials, said "the public should make no assumption about the
future of military commissions."

She said they will operate openly and fairly and added that dismissals of the
charges "reflect that the military judges operate independently."

Legal experts said Brownback apparently left open the door for a retrial for
Khadr, and that the Defense Department can possibly fix the jurisdictional
problem by holding new "combat status review tribunals" for any detainee headed
to trial.

Sullivan said the dismissal has "huge" impact because none of the detainees
held at this isolated military base in southeast Cuba has been found to be an
"unlawful" enemy combatant.

"It is not just a technicality; it's the latest demonstration that this
newest system just does not work," Sullivan told journalists. "It is a system of
justice that does not comport with American values."

The Military Commissions Act specifically says that only those classified as
"unlawful" enemy combatants can face war trials here, Brownback noted.

The distinction is important because if they were "lawful," they would be
entitled to prisoner of war status, which under the Geneva Conventions would
entitle them to the same treatment under established military law that US
soldiers would get.

A Pentagon spokesman said the issue was little more than semantics.

Navy Cmdr. Jeffrey Gordon told The Associated Press said the entire
Guantanamo system was set up to deal with people who act as "unlawful enemy
combatants," operating outside any internationally recognized military, without
uniforms, military ranks or other things that make them party to the Geneva
Conventions.

"It is our belief that the concept was implicit that all
the Guantanamo detainees who were designated as 'enemy combatants' ... were in
fact unlawful," Gordon said.